1. In my opinion, this rule should be made absolute. It appears that the plaintiff filed a suit against a very great number of defendants in October 1923 asking, in substance, for a declaration of title to a certain property and for certain reliefs as regards possession and rents. Certain of the defendants filed written statements but none of the opposite parties to this rule except defendant 17 tiled a written statement. A local investigation was ordered in 1924 and it appears that in 1925 various local enquiries were directed and were prosecuted. The commissioner made more than one report and, in May 1926, certain of the defendants filed objections to the report. The case was being tried before a Subordinate Judge of Dacca and, in that town there is apparently more than one Subordinate Judge. In November 1926, it appears that the case had been transferred from-one Judge to the other more than once and the position was, when we coma to March 1927, that the case was on the file of the Second Subordinate Judge. It appears that on 30th June 1927, it was transferred to the file of the Fourth Subordinate Judge, a Mr. Ghose. Before that time the final date for hearing, 18th July 1927, had been fixed. There is no doubt that all the parties-knew or had the usual means of knowing that 18th July was the hearing date. It is said that some of them had not become aware of the fact that instead of one Judge trying the case it was to be tried by another. But the two Judges were not sitting in different towns and I am entirely unable to see on the facts of this case that that matters very much.
2. Now, what happened on the date in question was that the Subordinate Judge, first of all, was asked by both sides to give an adjournment and he refused. I need not say that it is often very right indeed for a Judge to refuse adjournments which are asked for by both sides. The commonest experience in the District Courts is that for no reason at all cases are adjourned again and again and again and nearly always on petitions of both sides. The plaintiff was able in spite of that refusal to collect certain witnesses and he did, in fact, call four witnesses when the case was taken up on that day. One of the defendants, defendant 13, called a witness. The other defendants were in this position, it would seem, that when they found that the ease was being taken up they too wanted an adjournment. They had not any excuse whatever for themselves not being properly present or not having properly instructed a pleader or anything of that kind but they alleged before the Judge that there were certain witnesses against whom they desired processes to issue.
3. The learned Judge was not satisfied that there was any reason why the case should not go on and he determined that it should1 go on. The plaintiff called his four witnesses and defendant 13 called his witness. Anybody who desired to take part was heard in argument, but the particular defendants with whom we are concerned did not take any part in the proceedings. When they found that the Judge was going to go on with the case, neither they nor their pleader took any further part in the proceedings. Thereafter, the plaintiff's suit having been decreed as against them ex parte, certain of these defendants on 16th August 1927 applied, it would seem, under Rule 13, Order 9, Civil P.C., for restoration of the suit. As the decree was an ex parte decree against them, they were entitled to apply under that rule. They put forward a Bengali petition which contained no reasons whatever of the character required by Rule 13. They made a case that the value of the suit was high and that it was a great pity that it was decided against them ex parte but any relevant reason why they were not ready on 18th July was not disclosed by the petition. They supported that case by calling two witnesses. One was a gentleman who had recently been appointed guardian ad litem of a certain party who was not one of the applicants. The evidence of the other witness disclosed no reason, so far as I can discover, why these defendants were not ready to appear and take part in the case on 18th July.
4. In these circumstances, it has to be observed that all the persons applying to the learned Judge in the Court below except one were defendants who had net even filed a written statement, but defendant 17 one of these applicants had filed a written statement. Now, the learned Judge when he dealt with this somewhat curious application mo3t inadequately supported by evidence proceeded on this principle : he first of all, enlarges on the fact that the plaintiff himself was not ready on the date in question. Well, if the plaintiff had riot been able to produce evidence in support of his case, he would have suffered for his unreadiness. In fact, however, he was able to call and did call his witnesses. The learned Judge says that the suit is an old one no doubt, but big properties are at stake and that one more opportunity by way of warning should, in his opinion, have been given to these defaulting defendants. He then says that it was urged that the grounds stated were not proper grounds under Order 9, Rule 13. He says:
There may be soma force in their contentions, but they also narrowly escaped dismissal of the suit; this plaintiff also applied for time as he was not ready.
5. These reasons do not appear to be relevant to the objection that the grounds relied upon were insufficient under Rule 13. The learned Judge goes on:
It is a fit case also under Section 151 where inherent jurisdiction of the Court should be exercised to set aside the ex parte decree. I find sufficient cause, It is ordered that the ex parte decree be set aside.
6. I am by no means satisfied that the learned Subordinate Judge found or intended to find that there was a case made out to satisfy Rule 13, Order 9 and I entirely dissent from the view that, if no case is made out under that rule, it is open to the learned Judge to enlarga the rule by talking about Section 151. The rule deals not with a person who has no excuse for not being present or who, as a reason for not having all his witnesses, asks for an adjournment for the purpose of calling further evidence and is refused. That is not the subject-matter of the rule at all. The rule is dealing with a case where a decree is passed ex parte and it says that, if summons is not served or if the party is prevented by any sufficient cause from appearing when the suit is called on for hearing, the Courts shall make an order restoring the suit. In my judgment, so far as this batch of applicants, only one of whom filed a written statement, is concerned, the case does not come within Rule 13, Order 9. It appears to me that the learned Judge has restored the suit purporting to exercise powers which are not to be found in Rule 13, Order 9.
7. It may be perfectly true that a defendant who has not filed a written statement may take part to a certain extent in the hearing of the case, but an application to restore, when made at the instance of such a defendant, is in a particularly weak position because people who do not trouble to file written statements are not generally very diligent in other features of the defence. I entirely agree with the argument that, if this were a mere question whether or not certain cause was sufficient it would be a matter which we should not discuss under Section 115, Civil P.C. In my judgment, in this case the learned Subordinate Judge has purported to exercise powers which he does not possess. His duty was to exact from the particular applicants before him satisfactory evidence of sufficient cause why they were unable to appear when the case was called on for hearing. I say nothing now about the exact meaning of the word 'appearing.' They must show what the rule exacts. In my judgment, this case is an instance of a decree being set aside irregularly. It appears to me that the rule should be made absolute with costs. The hearing-fee in this Court is assessed at three gold mohurs.
C.C. Ghose, J.
8. I agree.